Supreme Court sympathetic to Catholic plea to participate in Colorado preschool program

WASHINGTON — Tackling the latest in a series of cases that pit LGBTQ and religious rights against each other, the Supreme Court on Tuesday appeared to lean toward Catholic entities that are seeking an exemption from Colorado’s antidiscrimination rules so they can participate in a taxpayer-funded preschool program.

In the Election Day session, the court’s conservative majority seemed inclined to see Colorado’s refusal to grant an accommodation as a violation of the religious rights of the Archdiocese of Denver and other plaintiffs under the Constitution’s First Amendment. A ruling is due by the end of June.

It is the latest in a series of cases in which Christian plaintiffs have pushed back against antidiscrimination measures aimed at protecting LGBTQ rights. Most such cases considered by the Supreme Court in the past decade have arisen from Colorado.

The court has a 6-3 conservative majority that regularly favors religious rights in cases brought by Christian groups.

At issue is a provision of state law that bars preschools from participating in the state-funded program if they refuse admission to children based on the sexual orientation or gender identity of the child or parents.

As Catholic doctrine does not recognize same-sex relationships or transgender status, the plaintiffs say the rule conflicts with their religious rights. The Trump administration supports the challengers.

Several conservative justices indicated during the two-hour session that the refusal to give the Catholic preschools an exemption had echoes of past discrimination against religious groups even if the law did not expressly single them out.

Justice Neil Gorsuch cited a line of recent rulings over the last decade in which the Supreme Court has paved the way for taxpayer money to flow to religious entities, including schools, despite longstanding prohibitions driven by the First Amendment’s Establishment Clause, which bars government endorsement of religion.

He wondered if “we were just wasting our time for the last 10 years.”

Justice Amy Coney Barrett also seemed skeptical that the state would not have known that certain religious entities would refuse to comply with a blanket LGBTQ rights provision.

“I’m not assuming animus” on the part of the state, she said. But, she added, “if you know that the effect of choosing that requirement will push out those with a contrary belief, how is that different?”

Another conservative, Justice Brett Kavanaugh, questioned why there was any need to enforce compliance with the antidiscrimination provision, noting that LGBTQ families have many other preschool options.

The state could have taken a “win-win” by accommodating both religious and LGBTQ rights, he said.

“There are plenty of opportunities to respect the rights of the religious believers and respect the ability of LGBT parents to find among the 2,000 schools an appropriate fit for their children,” he added.

The court’s three liberal justices expressed concern that the Catholic entities want to be given broad leeway to refuse compliance with any law they object to.

“It seems to me like you are asking for a special rule for religious schools,” Justice Ketanji Brown Jackson told the Catholic challengers’ lawyer, Nicholas Reaves.

On the flip side, by refusing to accommodate LGBTQ families, the preschools effectively want to “discriminate by exclusion,” she added.

The preschool program, approved as part of a statewide referendum in 2020, provides taxpayer funds for parents to send their children to their preferred preschool.

The case before the justices on Tuesday focuses on the long-running question of whether excluding religious groups from certain government programs violates the Constitution’s First Amendment, which protects the free exercise of religion.

In a 1990 ruling called Employment Division v. Smith, the Supreme Court stated that religious exemptions are not required when a law applies equally to everyone.

The court has stopped short of overturning that ruling in recent cases, even as it has ruled in favor of religious plaintiffs. In a notable ruling in 2021, the court ruled that a Catholic group could not be barred from a Philadelphia foster care program because of its views opposing same-sex couples.

The Catholic challengers in the Colorado case argue, among other things, that the state program already contains some loopholes that allow for schools to apply some discretion when accepting children. They are allowed, for example, to prioritize children with disabilities and those from low-income families. Those allowances “expressly conflict” with the state’s equal access requirement, the challengers wrote in court papers.

Colorado argues that its allowance for specialized services for disabled children and low-income families is consistent with its equal access approach because it “advances Colorado’s interests” in ensuring that disadvantaged people are not denied entry to the preschools, the state’s lawyers wrote.

Separately, preschools operated by Catholic Charities do participate in the state program. That organization has a different mission from the preschools run directly by the church and does not require attendees to comply with Catholic teachings.

The other plaintiffs in Tuesday’s case are St. Mary Catholic Parish in Littleton and Bernadette Catholic Parish in Lakewood, plus two parishioners at St. Mary, Daniel and Lisa Sheley. The Sheleys have seven children,with one in preschool and another soon to follow.

The Sheleys have not been able to benefit from more than $12,000 in tuition assistance because they chose to send their children to the church’s preschool, their lawyers said.

The archdiocese operates 34 preschools in the state in total.

The challengers sued in 2023 but lost in lower courts before asking the Supreme Court to weigh in.